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Allard Research Commons Motherhood The Peter A. Allard School of Law Allard Research Commons Faculty Publications (Emeriti) Allard Faculty Publications 2013 Motherhood Susan B. Boyd Allard School of Law at the University of British Columbia Follow this and additional works at: https://commons.allard.ubc.ca/emeritus_pubs Part of the Family Law Commons, Law and Gender Commons, and the Sexuality and the Law Commons Citation Details Susan Boyd, "Motherhood" in Margaret Davies & Vanessa Munro, eds, A Research Companion to Feminist Legal Theory [forthcoming in 2013]. This Working Paper is brought to you for free and open access by the Allard Faculty Publications at Allard Research Commons. It has been accepted for inclusion in Faculty Publications (Emeriti) by an authorized administrator of Allard Research Commons. 1 MOTHERHOOD By Susan Boyd [email protected] A Research Companion to Feminist Legal Theory Edited by Margaret Davies & Vanessa Munro Introduction An extensive feminist literature explores how law interacts with the social institution of motherhood and with the ideological frameworks that contribute to women’s oppression in western, liberal states. This chapter’s main concern is with feminist theories about law’s role in relation to motherhood, which reflects both coercive and ideological aspects. That is, women can be coerced into normative ideals of motherhood and penalized for failure to conform, but women can also ‘consent’ or choose to conform to ideological norms, raising far more complex questions for feminists and for feminist legal strategy. The chapter also explores the degree to which law and feminist legal strategies reinforce and/or challenge dominant ideologies of motherhood, which are rooted in the histories of race, class, gender, and sexuality. Another theme of this chapter is the differential impact of legal regulation, depending on whether a mother is working class or middle class, racialized or non-racialized, lesbian or straight, disabled or able-bodied, and so on. All women can be detrimentally affected by dominant legal norms, but women who depart from normative white, middle-class, heterosexual motherhood are likely to be scrutinized more heavily and treated more coercively than those who are able to conform. The question of law’s differential impact on women whose social location differs also poses important questions about feminist legal strategies, including whether they lapse into essentialist or ‘maternalist’ modes of analysis. This chapter proceeds on the premise that motherhood is socially constructed through the interaction of complex structures and ideologies. The first part explains this process and is then followed by two illustrative case studies on criminal law and family law. The risk of essentialism 2 is taken up in the next part on legal strategy. The last part of the chapter uses examples of ‘transgressive motherhood’ to suggest future directions for feminist legal theory and concludes with questions that continue to challenge feminist legal engagement with motherhood. The Social Construction of Motherhood: Law’s Ideological Role Despite women’s biological potential to conceive, gestate, give birth and lactate, ‘[m]otherhood is not a natural condition’ (Smart 1996: 37). Numerous feminist scholars have shown how the institution of motherhood is socially constructed in different historical periods, yet is presented ideologically as a natural consequence of biological differences between women and men. Indeed, in their review of feminist approaches to motherhood, Katherine O’Donovan and Jill Marshall (2006: 107) found that social construction is the most common approach within second wave feminism’s analysis of motherhood. Adrienne Rich (1976) is often credited as the first feminist to have presented a scholarly analysis of motherhood as an institution and to deconstruct the notion of an inherent maternal instinct. Motherhood, mothering, and family structures are all shaped by social, economic and cultural contexts, which in turn are framed by the interlocking structures of gender, race, class, and sexuality. As Martha Fineman puts it, motherhood is a colonized concept, something physically occupied and experienced by women, but defined, controlled, and given legal content by patriarchal ideology (1995: 38). Early feminist treatments of motherhood often drew on materialist feminist approaches to the family within capitalist patriarchy, including the work of sociologists and political economists about the (hetero)sexual division of labour within both public and private spheres that developed within the context of industrial capitalism (Boyd 1997). For instance, Michèle Barrett and Mary McIntosh (1982) showed that the traditional, nuclear, ‘anti-social’ or privatized family plays a particular role within capitalism as a socio-economic institution and an ideology. Among other things, the family provides ‘free’ reproductive labour by women in relation to the care of children and workers which, in turn, allows productive labour to be pursued on the assumption that the ‘private’ sphere of family is handling care work. Feminist historians have shown that as fathers became increasingly linked with the public world of paid work in the 19th and 20th centuries, and children became an economic cost to families, mothers were constructed as the 3 ‘divinely appointed guardians of the family’ (Backhouse 1981: 239). Ironically, this idealized and deeply gendered role for mothers did not necessarily translate into legal rights in relation to children (Boyd 2003). These structural insights about the material basis for motherhood have been adopted by many authors (e.g. Fineman 1995), often combined with attention to the role of ideology. The tool of ideology has been deployed to show how law both constructs and normalizes a set of ideas about motherhood, often distracting attention to its material roots, and facilitated an increasingly complex understanding of law’s roles in the social construction of motherhood. Ideology also assists in understanding the dynamics through which women are regulated by law across and through their differences and, specifically, how mothers are constructed as ‘good’ or ‘bad’, depending on their adherence to the expectations of the ‘normative mother’ (Boyd 1996; Fineman 1995; Kline 1989). Marlee Kline evocatively summarized the significance of ideology in the regulation of motherhood and highlighted its relationship to traditional family structures during a period of proliferation of literature on the ideology of motherhood (e.g. Fineman and Karpin 1995): By the dominant ideology of motherhood, I mean the constellation of ideas and images in western capitalist societies that constitute the dominant ideals of motherhood against which women’s lives are judged. The expectations established by these ideals limit and shape the choices women make in their lives, and construct the dominant criteria of ‘good’ and ‘bad’ mothering. They exist within a framework of dominant ideologies of motherhood, which, in turn, intersect with dominant ideologies of family. (Kline 1993: 310) The key normative expectations associated with the ideology of motherhood are that (1) a woman must be a mother before she will be considered a proper adult woman, thus tying motherhood with femininity; (2) a ‘good’ mother will be selflessly available to her children, taking primary care of them; (3) a ‘good’ mother will do so in the context of a heterosexual, nuclear family model premised on privatized female dependence and domesticity. These expectations may shift over time and even countenance working mothers (Boyd 2003; Murphy 4 1998), but those who deviate may still be constructed as unfit, which in turn can compromise their legal ties with their children. At best, mothers may ‘win’ a legal claim, but in a manner that reproduces oppressive dominant norms about women and mothers. For instance, arguments from both prosecution and defence in relation to mothers who are charged with murdering their infants often reinforce dominant norms of motherhood (Cunliffe 2011). Whereas the prosecution typically attempts to portray the woman as a bad mother because she departs from those norms, the defence offers evidence of the woman’s conformity with maternal ideals. The requirement that mothers behave selflessly in relation to children in their primary care has important consequences, not least by limiting their ability to take up paid work. As well, mothers’ rights are often constructed in opposition to the rights of their children, which may undermine ‘the fundamental bond that exists between most mothers and their children’ (Murphy 1998: 691). This oppositional treatment of mothers and children is manifested particularly in relation to child protection law, where women can be defined as failing to adequately protect their children even if the risk to the child is generated by other factors, such as poverty (Kline 1993). Even more acute are situations where a pregnant woman is positioned as a risk to the health of her fetus (Diduck 1993). This example illustrates that law is not the only institution that reproduces the ideology of motherhood through its discursive power: ‘discourses such as feminism, modern rationality, science, social work and psychology’ interact with law ‘in a kind of shifting hierarchy’ and also ‘are imbued with such factors as race, class and sexuality’ (Diduck 1993: 462). In combination with other professional discourses, such as science or medicine or psychiatry, law can be particularly powerful in scrutinizing maternal conduct,
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